Edem v IC and FInancial Services Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Beatson,Lord Justice Underhill |
| Judgment Date | 07 February 2014 |
| Neutral Citation | [2014] EWCA Civ 92 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2013/0791 |
| Date | 07 February 2014 |
[2014] EWCA Civ 92
Lord Justice Moses
Lord Justice Beatson
and
Lord Justice Underhill
Case No: C3/2013/0791
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(Administrative Appeals Chamber)
Upper Tribunal Judge Edward Jacobs
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Efifiom Edem appeared as a Litigant in Person
Mr Robin Hopkins (instructed by The Information Commissioner) for the 1 St Respondent
Mr Jason Coppel QC (instructed by the Financial Conduct Authority) for the 2 nd Respondent
By a Decision Notice dated 26 May 2011 the Information Commissioner declined to order the disclosure of the names of three members of the staff of the Financial Services Authority in response to an information request by the appellant, Mr Edem. The First-Tier Tribunal decided that the names of the officials did not constitute personal data and ordered that they be disclosed. The Upper Tribunal (Administrative Appeals Chamber) reversed that decision on appeal. Mr Edem now appeals, in person, following the permission of the single judge.
The background to this appeal lies in Mr Edem's request on 30 December 2009 of the Financial Services Authority for a copy of all information that the Authority held about him and "my complaint that the FSA had failed to correctly regulate Egg PLC". The FSA refused to provide some information on the ground that it was Mr Edem's own data which he could access under the Data Protection Act 1998. Although Mr Edem still seemed concerned as to that application it was not the subject matter of this appeal. This appeal is concerned with the Financial Services Authority's refusal to provide information on the ground that it was the personal data of its junior employees.
Mr Edem complained to the Information Commissioner. Part of that complaint was upheld by the Commissioner in his notice of 26 May 2011. The Commissioner accepted that the complainant had a legitimate interest in information about the grade of staff who had handled his complaint. But the Commissioner continued:-
"[21] The Commissioner notes that while the staff in question worked on the complainant's complaint, they did not correspond with him about it. He also notes that the public authority has confirmed that they were not in public-facing roles and that these individuals were of a grade below that of manager. It is the Commissioner's view that these members of staff would have had no expectation that their names would be released into the public domain.
The Commissioner is also satisfied that disclosure of their names would not add anything further to the way in which the complainant's complaint had been dealt with. Therefore any legitimate interest in the disclosure of the names of these individuals is outweighed by the prejudice disclosure would cause to the rights and freedoms of the individuals concerned."
The issue in this appeal is whether disclosure of the names of three junior officials could be withheld on the grounds that it was personal data and that disclosure of that information would contravene the first principle of the Data Protection Act 1998. I should record that the name of a fourth official involved in the same way as the three others had been disclosed by mistake.
The legislative scheme is as follows. Section 40(2) of the Freedom of Information Act 2000 provides:-
"(2) Any information to which a request for information relates is also exempt information if —
(a) it constitutes personal data which do not fall within sub-section (1), and
(b) either the first or the second condition below is satisfied.
(3) The first condition is
(a) in a case where the information falls within any of paragraphs (a)-(d) of the definition of 'data' in s.1(1) of the Data Protection Act 1998, that the disclosure of the information to a member of a public otherwise and under this Act would contravene —
(i) any of the data protection principles, or…"
The relevant principle is set out as the first data protection principle in Schedule 1 of the Data Protection Act 1998:-
"Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless —
(a) at least one of the three conditions in Schedule 2 is met…"
The only potentially relevant condition in Schedule 2 is Condition 6(1):
"The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject."
Although Mr Edem contended that he required the names for the purpose of a legitimate interest he was pursuing, the essential question in this appeal was whether the names of the three employees were personal data. Section 1 of the Data Protection Act 1998 defines personal data as:-
"'Personal Data' means data which relate to a living individual who can be identified —
(a) from those data, or
(b) from those data and other information which is in the possession of or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual."
There is no dispute but that disclosure of the names would be "processing" within s.1 of the Data Protection Act 1998. Nor was there any dispute but that the names were data. Mr Edem had suggested that there was no evidence that the three individuals were living but the judge in the Upper Tribunal, Judge Jacobs, recorded that they were and there was no evidence to the contrary nor any foundation for appealing on that basis. Judge Jacobs concluded:-
"I've seen the name of officials and their names are not unique. But they can be identified from their names taken together with the contextual information of their grades and dates of employment. No one argued otherwise."
In this appeal Mr Edem challenged that finding, although he appeared not to have done so before Judge Jacobs. Mr Edem contended that it was not possible to identify the names of the officials from the e-mails relevant to the Financial Services Authority's enquiry in which their names appeared. It is unnecessary to set out all the e-mails which were enclosed in the open bundle in the appeal to the Upper Tribunal. I can give a flavour of them by reference to three:-
"From: [C]
Sent 25 June 2004 13–01
To: Paul Morris (Company Secretariat)
Subject: Egg
Paul
You left a message on my voicemail re Egg. Just to let you know that I have contacted Julian Adams and [D] who are responsible for Egg (I no longer look after it) to ask them to ring you.
Regards
[C]"
"From: Paul Morris (Company Secretariat)
Sent 09 July 2004 15:18
To: Ian Mason
Subject: New Stage 1 Complaint: Mr E Edem
Ian
This e-mail is to request whether [A] or Daniel Thornton will be available to act as an independent investigator for a new stage 1 complaint. The scope of the complaint does not include any allegation against Enforcement. This may not be a straightforward investigation…"
In an open witness statement dated 10 January 2012 to the First-Tier Tribunal Rosalind Leaphard of the Financial Services Authority says that an associate was the most junior level or grade of professional in the FSA. She said that associates in the supervision division, B, C and D, would not have had responsibility for making significant decisions in relation to the regulation of the firms assigned to their division. She said they would not have had an "outward-facing" role or acted as spokesperson for the FSA other than with the firms they were supervising and would not have responsibility for making decisions on FSA expenditure.
It seems to me beyond question that those living individuals could be identified from a combination of their names and the documents emanating from the Financial Services Authority which show that they were working there in the capacity described by Rosalind Leaphard.
There is ample authority in the Court of the Justice of the European Union that a person's name, in conjunction with job-related information, is their personal data. In Criminal Proceedings against Lindqvist ( C-101/01, ...
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